The case before the Supreme Court will explore whether the core protections of the Clean Water Act apply to South Florida Water Management District's practice of pumping huge quantities of polluted stormwater uphill from a collection canal in a developed area into a natural wetland area in the Everglades. The river-sized flow of stormwater contains phosphorus and other pollutants.
The water management district is arguing that it does not need a Clean Water Act permit because the pump conveys polluted water, but doesn't add pollutants to the water. The environmental groups' amicus brief argues that the very essence of the Clean Water Act's point source permit program is to address the "conveyance" of pollutants. Exempting conveyance from permitting would open the door to serious degradation of cleaner waterbodies by pollutants diverted from more polluted ones.
The district court and the Eleventh Circuit Court of Appeals sided with the Miccosukee Tribe of Indians and Friends of the Everglades, an environmental group, holding that pumping dirty stormwater into the Everglades is a discharge of pollutants under the Clean Water Act, and therefore requires a National Pollutant Discharge Elimination System (NPDES) permit. The water management district has appealed the case to the U.S. Supreme Court.
"People who care about our nation's precious waters have to stand up to protect them, because the federal government has already sided with the polluters," said Howard Fox, managing attorney for Earthjustice's Washington DC office, who is representing the seven environmental groups. "Allowing diversion of dirty waters into clean ones, without Clean Water Act safeguards, is a misguided 'lowest common denominator' approach."
A ruling in favor of the Water Management District would threaten continued pollution of the Everglades -- a matter of significant concern given recent Florida legislation that substantially postponed deadlines for pollution cleanup. More broadly, the approach advocated by the district holds broad implications for the jurisdiction or reach of the country's primary water pollution control law, affecting a host of other wetlands, lakes and rivers around the United States. Many water districts or similar entities collect polluted surface waters and divert them into cleaner waters.
"If the South Florida Water Management District's and the Bush administration's position prevails in this case, serious environmental threats from interbasin water transfers such as invasive species, urban and industrial runoff and agricultural pollution could become epidemic across the country, jeopardizing waters important to fish, birds, and other wildlife," said Jim Murphy, water resources counsel at the National Wildlife Federation.
"This case is critical to restoration of the Everglades," said Bob Irvin, director of U.S. Conservation for World Wildlife Fund. "Only by providing clean water, at the right times of the year in the right amounts, can the River of Grass, and the wildlife that depends on it be restored. Government agencies involved in Everglades restoration should comply with the Clean Water Act and all other environmental laws, not seek to avoid them."
In addition to the brief filed by Earthjustice's Washington, D.C., office on behalf of National Wildlife Federation, Natural Resources Defense Council, Sierra Club, American Rivers, National Audubon Society, National Parks Conservation Association, and World Wildlife Fund, Earthjustice attorneys in the Tallahassee office have filed an amicus brief on behalf of Florida environmental groups in this same case.
"Thirty years of environmental progress has taught us that the Clean Water Act works," said Robin Mann, chair of Sierra Club's National Clean Water Campaign committee. "Instead of working to restore the Everglades, the Bush administration wants to give polluters a pass to dump polluted storm water into the River of Grass, and seriously undermine restoration efforts. We are proud to stand with the Miccosukee Tribe and the Friends of the Everglades to demand that the Bush administration strongly enforce our clean water protections and safeguard the Everglades."
"It's a sign of the times that polluters feel emboldened to keep appealing rather than complying with court orders to stop," said Liz Birnbaum, director of government affairs for American Rivers.
"Allowing the discharge of polluted water into the Everglades is giving polluters a free walk: the Supreme Court must recognize this and uphold the rulings of the two lower courts," said Audubon's Director of Government Relations, Perry Plumart. "If the court fails to support the Clean Water Act, healthy drinking water and restoration projects everywhere -- especially in the Everglades -- could be threatened by polluters acting with virtual immunity."
For more information, please contact:
Jim Murphy, National Wildlife Federation, 202-797-6893
Howard Fox or Cat Lazaroff, Earthjustice, 202-667-4500
Robin Mann, Sierra Club, 610-527-4598
Liz Birnbaum, American Rivers, 202-347-7550, x3015
John Bianchi, Audubon, 212-979-3026
Mary Munson, Suncoast Regional Director,
National Parks Conservation Association, 954-649-6327
Tom Lalley, World Wildlife Fund, 202-778-9544